Raj Kishore Prasad, J.

1. The two points pressed, in this Letters Patent Appeal, against the judgment of Mr. Justice S. K. Das, as he then was, are : (1) whether the plaintiff-respondent is estopped by the principle of acquiescence from claiming a greater area; and (2) whether the impugned mortgage decree is binding on Dasrath Singh, defendant-appellant 2.

2. The plaintiff-respondent brought a suit for declaration of his title and confirmation of possession, or in the alternative for recovery of possession, in respect of 40 acres of land comprised in plot No. 839, under holding No. 339, situated in village Alawalpur.

3. The plaintiffs case was that, on 30th of October 1954, Milan Singh, Ramprasad Singh, father of Dasrath Singh, defendant-appellant 2, and Ishar Singh, defendant-appellant 1, executed a mortgage deed, in favour of the plaintiff, in respect of 2.63 acres of land, which included 1.81 acres out of holding No. 339. Holding No. 339 consisted of six plots, and included plot No. 839, the disputed land also. The entire area of plot No. 839 was .79 acres.

4. On the foot of the mortgage, the plaintiff brought a mortgage suit against the executants. Admittedly, to this s